IN THE CASE OF:	

		BOARD DATE:	  8 December 2009

		DOCKET NUMBER:  AR20080020097 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, reconsideration of his request that he be granted promotion reconsideration by a special selection board (SSB) for promotion to the rank of major beginning in January 1999 and all succeeding boards and that the security clearance requirements be waived in his case.

2.  The applicant states, in effect, that had his date of rank (DOR) for appointment to captain been properly calculated based on his constructive credit, he would have first been considered for promotion to the rank of major beginning in January 1999, while he was still in the STRAP (Specialized Training Assistance Program).  He goes on to state that he was first considered and selected in 2002; however, because he did not have a security clearance, his promotion was delayed until 2004.  He continues by stating that he was never made aware that there was an issue with a security clearance and he did everything that was required, including renouncing his Israeli citizenship.  However, his promotion was unjustly delayed.  He goes on to state that security clearance requirements were dropped from the promotion board requirements in 2004 and therefore he should be granted a waiver of the requirement because the delay was through no fault of his own.  He further states that a review of the U.S. Army Human Resources Command (HRC) Integrated Web Services (IWS) transactions will show that officials at HRC recognized that his DOR was incorrect and adjusted it; however, he did not receive promotion reconsideration.

3.  The applicant provides a copy of his IWS transactions and a copy of an electronic mail (email) message from HRC officials regarding his DOR.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20060006214 on 8 May 2007.

2.  The applicant was beginning his Cardiothoracic Surgery Residency Program at the University of California in Los Angeles, California when he was appointed as a U.S. Army Reserve (USAR) Medical Corps captain under the STRAP on 17 August 1997, with 10 years of constructive credit.  He completed his residency in 1999.  

3.  The applicant’s security investigation was not completed until May 2004. He was promoted to the rank of major on 24 August 2004 with a DOR of 3 May 2004.

4.  The email message from officials at HRC in St. Louis inform the applicant that he could have been considered for promotion in 1998; however, he was not and it appeared that the adjustment made to his DOR in November 2001 made him immediately available.  He was also advised that even if selected earlier, he could not have been promoted because of not having completed the officer basic course (OBC) and not having a security clearance.

5.  A review of the applicant's records failed to reveal the correction to his DOR in November 2001.  His records do show that he completed his OBC on 14 December 2001.  Additionally, there is no indication in his records which show that the applicant was ever informed that he was required to complete OBC prior to promotion or that he was required to have a completed security clearance for promotion.  

6.  Army Regulation 135-101 (Appointment of Reserve Commissioned Officers for Assignment to Army Medical Department Branches), paragraph 1-5e, states an applicant must have been the subject of a National Agency Check (NAC) or investigation of broader scope.  An exception is granted for appointment of a qualified U.S. citizen or immigrant alien applicant prior to completion of the NAC and Federal Bureau of Investigation name check provided a statement of understanding for appointment as a commissioned officer is signed.  

7.  Army Regulation 135-155 (Army National Guard and U.S. Army Reserve Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) provides policy and procedures for the selection and promotion of commissioned officers of the Army National Guard and the USAR.  Chapter 2 of that regulation provides, in pertinent part, that in order for officers to qualify for selection, they must complete the educational requirements for promotion no later than the date the selection board convenes.  Table 2-2 of that regulation provides that Army Medical Department (AMEDD) officers (regardless of the grade in which appointed) other than STRAP participants and Medical Service (MS) officers with medical functional area 70 or area of concentration 67J, appointed on or after 1 June 1986, are required to complete the AMEDD resident Reserve Component (RC) Officer Basic Course (OBC) within 3 years after appointment.  STRAP participants do not have to complete the AMEDD resident RC OBC until 3 years after the completion of their STRAP training program. 

8.  The STRAP provides financial assistance to participants engaged in specialized medical training in return for service in the RC.  Participants incur a service obligation of 2 years for each year or portion of a year in which they receive funds.  This may extend a Soldier’s military obligation which commences upon completion of residency training.  The STRAP cannot be utilized in conjunction with any other incentive.

DISCUSSION AND CONCLUSIONS:

1.  Inasmuch as the applicant was appointed in the rank of captain under the STRAP, he was not required to complete the OBC until 3 years after completion of his STRAP training.  He completed that training in 1999 and completed his OBC on 2001, which was well within the required time frame.  Accordingly, his educational requirements should not have been an issue in regard to his promotion eligibility. 

2.  There appears to be sufficient evidence to suggest that the applicant's DOR may have been improperly computed at the time he was appointed and that when it was discovered it was too late or was overcome by events because he did not have a completed security investigation and could not be promoted when selected.

3.  However, the Department of the Army had a responsibility to ensure that he was aware of the requirement to have a valid security investigation at the time he was recruited and appointed and there is no indication of any efforts being made in that regard.  However, he was subsequently granted the appropriate security investigation in May 2004.  Therefore, it appears that the applicant has been disadvantaged in the form of delayed promotions.

4.  Although it cannot be determined by this Board the extent to which the applicant has been disadvantaged, it would be appropriate for HRC promotion officials to review his records to determine if he is entitled to consideration by SSBs based on his adjusted DOR.

5.  In the event that he should have been considered earlier than he was, he should be granted a waiver of his security investigation requirements (for consideration only) and considered for promotion by the appropriate SSBs.

6.  However, if he is selected, he will receive the appropriate DOR based on his selection, but the effective date will be the date the security investigation was granted or later as appropriate.

7.  The country is at war and it would not be appropriate to waive the requirement to have a security investigation.  However, since it appears that no action was taken to initiate action for a security investigation in a timely manner, the applicant should not be unjustly penalized.

8.  Accordingly, the applicant should be afforded the opportunity to compete fairly with his peers and to be promoted if selected by any duly constituted boards that would have considered him had the errors not occurred.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

___X____  ___X____  ___X___  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant partial amendment of the ABCMR’s decision in Docket Number AR20060006214, dated 8 May 2007.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by having HRC-St. Louis promotion officials to review his records to determine if he is entitled to consideration by SSBs based on his adjusted DOR and, if so, he should be granted a waiver of his security investigation requirements (for consideration only) and be considered for promotion by the appropriate SSBs.  If he is selected, he will receive the appropriate DOR based on his selection, but the effective date will be the date the security investigation was granted or later as appropriate.
2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to a total waiver of the security investigation requirement.




      ____________X_____________
                 CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont)                                         AR20080020097



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ABCMR Record of Proceedings (cont)                                         AR20080020097



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